[A2k] SCCR/32 EIFL statement on retracted and withdrawn works

Teresa Hackett teresa.hackett at eifl.net
Thu May 12 13:49:17 PDT 2016


WIPO STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS

32nd Session: Geneva, 9 May – 13 May 2016
Agenda item 6: Limitations and exceptions for libraries and archives

Topic 7 Orphan Works, Retracted and Withdrawn Works

I am speaking on behalf of Electronic Information for Libraries (EIFL) on
Topic 7 Retracted and Withdrawn Works.

Libraries and archives have a mandate to preserve the public record for the
future.

In the analogue environment, exhaustion to the distribution right provides
the legal means to ensure its basic operation. If an article in a print
journal is withdrawn for any reason, the library has the hard copy to
preserve and provide access for research or scholarship (subject to
preservation exceptions). The rightsholder cannot remove the item from the
library.

In the digital environment, where the right of distribution does not apply,
there are no such safeguards. Journal articles can, and do, disappear from
databases.

A well-known example arose in the case of the MMR vaccine in the UK in
1998. A paper published in the medical journal, The Lancet, claimed that
the combined vaccine for measles, mumps, and Rubella, known as MMR, caused
autism spectrum disorders. The claims, that were widely reported in the
mainstream media, led to a sharp drop in vaccination rates. As a result,
there were increased cases of measles and mumps among children that led to
deaths and permanent injury.

The medical claims contained in the article were subsequently discredited.
The research paper was partially retracted by the journal in 2004, and
fully retracted in 2010.

Researchers in epidemiology investigating the drop in vaccination rates
will want to have access to that paper. If the article was published in the
print version of the journal, it will be preserved in a library. If it was
only published online, there is no guarantee.

The principle behind the provision on retracted and withdrawn works
therefore is to help achieve the goal of permanent access and preservation
in the digital environment.

Because if the library doesn’t have the item, it can’t preserve it.

We thank member states for their proposals addressing retracted works, and
the consolidated text in document SCCR/29/4.

The provision, contained in paragraphs 4 and 5 of Topic 7, provides an
exception to the rights of reproduction and communication to the public for
works that were previously communicated to the public.

Since retraction concerns moral rights, paragraph 5 provides for respect of
moral rights. A member state can limit the application of the provision, or
can decide not to apply the provision at all.

Paragraph 4 makes clear that the provision is subject to any court
decisions in respect of a particular work, or as otherwise provided by
national law.

Libraries and archives work to ensure that the public record is complete
and accessible for the future, long after the work has lost its commercial
value or the owner has disappeared.

Unless libraries have legal backing, a proper record for digital material
cannot be guaranteed.

Thank you for your attention.



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